“Struggling to Achieve Freedom for Religion”
By Nathan J. Diament
Washington Jewish Week, October 22, 1998

The fight over whether the laws of the United States provide its citizens with the freedom to fully practice their religions or, conversely, strive to ensure that society’s public square is free from religion continues to be waged in our nation’s courts and legislatures.

It is worthwhile — particularly in the Jewish community which rightly trains much attention and effort on these issues — at the start of a new year and its coincidence with our civic society’s renewal – in the form of elections – to assess the status of religious freedom initiatives.

Of course, on one fundamental level, the United States remains the preeminent bastion of religious freedom. More religions are observed here than anywhere else. Yet, our nation still remains a place where the secular is favored over the religious in concrete ways. While few suggest the reverse should be the case, many citizens of many faiths believe that the U.S. Constitution contemplates religion being treated with respect equal to non-religion, and certainly not discriminated against. On this account, there have been some gains in our nation’s courts and legislatures, but a great deal of work lies ahead.

Perhaps the most daunting tasks remain in the legislative arena. Over a year ago, the Supreme Court stuck down the Religious Freedom Restoration Act. As a result, state or local laws can unintentionally restrict an individual’s freedom to practice his or her religion even if the state has no compelling reason to do so. The day the Supreme Court rendered its decision, leading senators and representatives as well as state legislators committed themselves to passing new laws that would respect the high court’s ruling yet redress the threat to religious freedom.

Unfortunately, due to a variety of political challenges, such legislation remains unpassed and religious citizens and institutions remain vulnerable to laws and regulations that restrict their freedom.

We have also been working in congress to pass legislation that would redress some of the burden that the private sector can place upon religious people. While laws have been loudly championed and enacted to require employers to accommodate “secular” needs of their employees (with regard to family and medical leave, for example), current law asks little of employers in terms of accommodating employees’ religious needs. Thus, we’ve been working in congress to pass the Workplace Religious Freedom Act. This law would ask employers to reasonably accommodate the religious needs of their workers within appropriate
circumstances.

Despite having a bipartisan group of sponsors and a wide range of religious groups behind the bill, it too has failed to overcome its opponents (such as the business and organized labor lobbies) and will be held over for the next congress.

The news is not all bad, however, on the legislative front. Congress has begun to pass pieces of legislation that open the opportunity for “charitable choice” with regard to social services. Such laws allow religiously affiliated social service providers to compete alongside private secular providers for federal grants to provide their services
such as drug rehabilitation or job counseling. In the education policy arena, congress has also passed a variety of initiatives – from voucher proposals to tax free education savings accounts – that embrace the concept of treating religious and secular families equally. While this is the greatest progress such proposals have ever made, they have been thwarted by presidential vetos.

In our nation’s courts, the results for those of us who champion religious freedom and equality are mixed as well. In the specific context of school funding cases, rulings have varied. Wisconsin’s supreme court found Milwaukee’s pilot voucher program to be constitutional as did an intermediate Ohio court with regard to Cleveland’s. On the other hand, federal trial courts in Vermont and Maine ruled that even though rural communities subsidize their students’ attendance at public or secular private schools in larger towns, they need not provide the same benefit to families that choose to send their children to parochial schools. However, a federal appellate court has more recently ruled that a Minnesota school district cannot discriminate against religious school students in the provision of in-class aides for the disabled if it provides such aides for secular private school students.

While these rulings seem confused, we can expect the Supreme Court to take up some of these cases and the more general issue of equality for religion sometime this year. In light of the fact that the Court’s decisions in recent years have tended toward championing the equality of religion, there is real hope that some progress will be made in the courts in the very near term.

In sum, the task for us in the coming year is serious and requires commitment. It requires the entire Jewish community to recognize that there are differences with the community over some of these issues.

These differences can be traced to policies that were adopted by some elements of our communal leadership over four decades ago and, it would seem, should be reexamined in light of the current interests of the Jewish community and the current state of American society. Our legislatures and courts seem to be finally moving toward ensuring the freedom for religion, in all spheres, that the Orthodox community has long been committed to. We will be fighting for that freedom in the coming year; we hope the entire Jewish community will join with us.